In the Interest of A. S. Et Al., Children

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
December 8, 2016
In the Court of Appeals of Georgia
A17A0096. IN THE INTEREST OF A. S., T. S., I. S., AND T. P.
PETERSON, Judge.
The mother of four young children, A. S., T. S., I. S., and T. P., appeals from
the termination of her parental rights.1 She argues that termination of her rights was
against the weight of the evidence, and that the juvenile court erred by allowing a
supervisor from the Division of Family and Children Services (“DFCS”) to testify as
an expert witness. We reverse because the State did not sufficiently establish that the
children are likely to suffer harm under the status quo.
Viewed in the light most favorable to the judgment below, In the Interest of M.
S. S., 308 Ga. App. 614, 614 (708 SE2d 570) (2011), the evidence shows that the
1
The parental rights of the father were terminated, as well, but that is not an
issue in this appeal.
children came to the attention of DFCS when the youngest child, T. P., tested positive
for cocaine at his birth in July 2014. On that same day, T. P.’s mother also tested
positive for cocaine and marijuana. The mother had tested positive for both drugs the
preceding month, and admitted to smoking marijuana and using cocaine while
pregnant. DFCS issued a safety plan placing the children with their maternal
grandparents.
The mother continued to test positive for cocaine, marijuana, and oxycodone
until she was arrested in September 2014. Following her release from jail, she began
to test negative on her drug screens for several months beginning in December 2014,
but had trouble attending meetings due to her work schedule and was referred to an
in-home provider. The criminal charges against her were dismissed.
On December 12, 2014, the juvenile court entered an order finding that the
children were dependent due to the parents’ continued substance abuse and the
mother’s unresolved mental health issues and transferred temporary custody of them
to DFCS. The juvenile court directed that the reunification case plan for the mother
contain provisions requiring, among other things, that the mother remain drug and
alcohol free and test negative on random drug screens for at least six consecutive
months, maintain clean and stable housing, complete a psychological evaluation,
2
complete recommended drug and alcohol counseling, complete mental health
counseling or therapy, maintain regular employment or have income sufficient to
support the family, and support the minor children as required by law.
On March 6, 2015, the juvenile court entered a judicial review order finding
that the children remained dependent because although the mother was making
progress on her case plan, she had not been participating in drug treatment, and
further progress was needed. The mother continued to visit her children and missed
less than five out of 130 visits. Of the few visits she missed, one was because she was
denied visitation after arriving one minute late.
The mother tested positive for benzodiazepines in May 2015, which she denied
taking, stating that she had taken what she believed to be an Aleve obtained from a
co-worker for a headache. The mother’s following drug screen was negative, but then
she began refusing drug screens.2 The DFCS supervisor claims that the mother
admitted that she used marijuana, but the mother denied this, stating that she was in
a room where marijuana was being smoked and was concerned she would test
positive. Prior to the permanency hearing, DFCS noted that she also had not
2
The mother was advised that DFCS would consider a refusal to be a positive
drug screen for the purposes of determining compliance with the case plan.
3
completed the required progress toward the goals of providing stable and safe
housing and stable income. DFCS indicated that it intended to terminate her parental
rights. The three oldest children were moved into foster care in September 2015 when
their maternal grandparents were no longer able to care for them.
DFCS filed a petition to terminate the parental rights of the children’s parents
on January 14, 2016. At the hearing, which was held in March 2016, the DFCS
supervisor testified regarding the department’s involvement with the children. The
supervisor indicated that the mother had been “primarily consistent with keeping
employment” through a series of fast-food jobs.3 The mother had also been staying
in a trailer owned by her sister since 2014, though the supervisor testified that it was
without electricity for a period of several months. Additionally, the supervisor
testified that although the mother had originally attended out-patient drug counseling,
she stopped going because “she did not feel like she needed it any longer” and
because she was having difficulty attending due to her work schedule. The mother
was referred to in-home substance abuse services, which she successfully completed.
However, after failing the drug screen in May 2015, the mother failed to attend
3
The supervisor did complain that the mother had left jobs without a good
reason and had not consistently provided documentation of her hours or wages.
4
consistently substance abuse and medication management treatment. The mother also
failed to complete counseling following a domestic violence incident that occurred
during a transitional visit with the children. The supervisor testified that the mother
had been prescribed some medication, though she was unsure what for, and that the
mother had indicated that she did not want to take the medication. However, the
mother testified that she had been taking medication that she has found it helpful.
Finally, the supervisor testified that both parents owed a total of $920 in ordered child
support.4
The State tendered the DFCS supervisor as an expert with respect to the effects
of keeping the children in foster care, the mother objected on the basis that the
witness had an interest in the case, and the juvenile court overruled her objection. The
expert testified that if permanency was not established for the children at their tender
ages, they would have a hard time forming healthy attachments to others and would
be at increased risk of delinquency. She further testified that the children would be
harmed by maintaining visitation with their parents because they would face
confusion and uncertainty due to their inability to return home to their parents.
4
The mother testified that she, and not the father, had been the only one
attempting to pay the court-ordered child support.
5
At the end of the hearing, the juvenile court stated that the “issue here is
compliance . . . . To me, you must have completed 90 — 95 percent of your goals .
. . . And if you haven’t, I’m going to terminate your rights.” In its order terminating
the parents’ rights, the juvenile court found that the mother failed to comply with the
reunification plan. The court concluded that because the mother had continued to use
drugs, had not supported the children, and had not maintained stable and suitable
housing, the children’s “dependency is likely to continue and will not likely be
remedied and will likely cause serious physical, mental or emotional harm to the
children.” With respect to the emotional, and mental health needs of the children, the
court found that the children needed a sense of permanency, commitment, and
continuity not available through foster care. The mother filed an application for
discretionary appeal, which this Court granted.
The mother argues that the termination was against the weight of the evidence.
But the mother does not make any clear argument as to precisely where the juvenile
court erred; instead, the mother simply presents various facts — that she had ended
her relationship with the father who she claims had a “negative effect” on her, had
been the only parent to pay some portion of the ordered child support, maintained
stable employment and residence, completed required parenting classes, completed
6
a drug assessment and drug treatment, maintained regular contact with and regularly
visited her children, and failed only one drug test, because of a pill she believed to be
an over-the-counter pain reliever. Regardless of these issues, we reverse because the
State did not sufficiently establish that the children would suffer harm under the
current arrangement.
OCGA § 15-11-310(a) provides that a court considering termination of parental
rights must first determine whether at least one of five statutory grounds for
termination has been met. Here, the trial court terminated the mother’s rights under
OCGA § 15-11-310(a)(5), which provides that a ground for termination exists when:
A child is a dependent child due to lack of proper parental care or
control by his or her parent, reasonable efforts to remedy the
circumstances have been unsuccessful or were not required, such cause
of dependency is likely to continue or will not likely be remedied, and
the continued dependency will cause or is likely to cause serious
physical, mental, emotional, or moral harm to such child.
Among the grounds on which a juvenile court may find a child dependent due
to lack of proper parental care and control are: (1) a parent’s “[e]xcessive use of or
history of chronic unrehabilitated substance abuse with the effect of rendering a
parent of such child incapable of providing adequately for the physical, mental,
7
emotional, or moral condition and needs of his or her child;” (2) a parent’s
“[p]hysical, mental, or emotional neglect of his or her child or evidence of past
physical, mental, or emotional neglect by the parent of such child or another child of
such parent;” and (3) a parent’s failure, without justifiable cause, to “significantly for
a period of six months prior to the date of the termination hearing . . . [t]o provide for
the care and support of his or her child as required by law or judicial decree . . . and
. . . [t]o comply with a court ordered plan designed to reunite such parent with his or
her child.” OCGA § 15-11-311(a)(2), (a)(5), (b)(2 & 3). The juvenile court relied on
each of these grounds in terminating the mother’s parental rights here.
Once the juvenile court has found that the statutory grounds for termination
have been met, the juvenile court then considers whether termination is in the child’s
best interest after considering several specified factors. OCGA § 15-11-310(b).
Grounds for termination must be proven by clear and convincing evidence. OCGA
§ 15-11-320(a). The juvenile court’s order terminating parental rights must “[c]ontain
written findings on which the order is based, including the factual basis for a
determination that grounds for termination of parental rights exist and that
termination is in the best interests of the child[.]” OCGA § 15-11-320(b)(1).
8
1. By arguing that the termination was “against the weight of the evidence,”
the mother implicitly challenges the juvenile court’s finding of dependency, though
she did not appeal from the juvenile court’s prior determinations that the children
were dependent. Thus, we assume that the evidence was sufficient to show
dependency at those times. See In the Interest of D. M., No. A16A1295, 2016 WL
6134092, at *5, 2016 Ga. App. LEXIS 576, at *15-*16 (1) (a) (Ga. Ct. App. Oct. 20,
2016). After reciting the facts that formed the basis for the prior findings of
dependency, the juvenile court concluded that the children remained dependent.
Specifically, the juvenile court highlighted the mother’s continuing substance abuse
evidenced by her prior positive drug screen and several refused screenings (which
DFCS treated as positive). The juvenile court also pointed to her inability to pay even
a symbolic amount of child support or to provide stable housing, as indicated by the
numerous months her residence was without power, during which time she stayed
with other relatives. These findings supported the trial court’s conclusion that the
children were dependent at the time of the termination hearing due to a lack of proper
parental care and control. See In the Interest of P. D. W., 296 Ga. App. 189, 194 (1)
(b) (674 SE2d 338) (2009) (holding that the mother’s lack of parental care and control
9
were the cause of deprivation when the mother failed to undergo court-mandated drug
treatment and obtain adequate housing, among other things).
2. As to whether the children’s dependency is likely to continue, the trial court
noted that “[r]easonable efforts to remedy the circumstances have been
unsuccessful[,]” and pointed to the mother’s inability to remain drug-free, pay the
symbolic amount of child support, or maintain stable housing. The mother testified
that she, and not the father, had been the only one who had paid any portion of the
court-ordered child support, though she did not refute that more was owed. And the
testimony showed that the mother had been able to maintain the same residence, with
the exception of the several months that it was without power. Were the mother’s
problems paying the ordered child support and maintaining stable and clean housing
the only issues supporting the juvenile court’s finding that the deprivation is likely
to continue, we would have a much harder time affirming this aspect of the juvenile
court’s decision, as the mother was making progress toward remedying those
challenges that appear to stem largely from her poverty. See In the Interest of S. R. R.,
330 Ga. App. 817, 820 (769 SE2d 562) (2015) (“This Court will not sustain the
termination of a mother’s right to raise her child, based on . . . her poverty” when it
does not render her “incapable of caring for her child.”). However, in finding that the
10
children’s deprivation was likely to continue, the juvenile court also pointed to the
mother’s inability to remain drug free, and specifically her failed and refused drug
screenings.
The mother admitted using marijuana and cocaine during her pregnancy. When
her youngest child was born, both she and the child tested positive for cocaine and
marijuana. This prompted DFCS to remove the children to the care of the mother’s
parents. The mother continued testing positive for cocaine and marijuana, as well as
oxycodone, in the following months. After she was arrested and began drug
treatment, the mother had some negative drug screens. However, in May 2015, the
mother tested positive for benzodiazepines, which she denied intentionally taking.
The mother’s following drug screen was negative, but then she began refusing drug
screens despite being advised the refusal would be treated as a positive screen by
DFCS. The DFCS supervisor claims that the mother admitted to using marijuana, but
the mother denied this, stating that she was in a room where marijuana was being
smoked and was concerned she would test positive. The mother also failed to
complete substance abuse counseling following her positive drug screen.
The juvenile court was entitled to weigh the mother’s credibility when she
denied intentionally using drugs, as well as her explanation for refusing some of the
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subsequent drug screens. In the Interest of A. M. H., 292 Ga. App. 318, 319 (665
SE2d 8) (2008) (“On appeal, this Court neither weighs evidence nor determines the
credibility of witnesses; rather, we defer to the juvenile court’s fact-finding and affirm
unless the appellate standard is not met.”); In the Interest of K. C. W., 297 Ga. App.
773, 777 (1) (678 SE2d 213) (2009) (juvenile court “was entitled to give little
credence” to mother’s claim of recent improvements with respect to her substance
abuse issues). Moreover, “[i]n determining whether the cause of deprivation is likely
to continue, the juvenile court may consider the parent’s past conduct[.]” In the
Interest of D. W., 294 Ga. App. 89, 92 (1) (c) (668 SE2d 533) (2008). “And it may
assign much less weight to assertions of sudden parental fitness when compared to
the other evidence.” Id. A juvenile court’s finding that a parent is highly likely to
continue using illegal drugs supports the conclusion dependency is likely to continue.
See, e.g., In the Interest of A. B., 274 Ga. App. 230, 232 (617 SE2d 189) (2005)
(affirming termination where mother continued to struggle with drugs while children
were in State care and failed to achieve financial and residential stability). There was,
then, evidence to support the juvenile court’s finding that the children’s dependency
was likely to continue and would not likely be remedied.
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3. We must next examine whether there was clear and convincing evidence
that the children’s continued dependency was likely to cause serious physical, mental,
emotional, or moral harm. See OCGA § 15-11-310(a)(5). A finding that dependency
is likely to continue does not necessarily justify a finding of harm, although facts
authorizing such a finding also could support a finding of harm in particular
circumstances. See In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5)
(2011) (whole court) (analyzing under “deprivation” standard of former Juvenile
Code). Rather, in determining whether harm to the child exists, “our law requires a
juvenile court to consider both the relationship between the parent and child at the
time of the termination hearing and what might happen if the child were returned to
the parent.” In the Interest of E. M. D., No. A16A0986, 2016 WL 6395633, at *8,
2016 Ga. App. LEXIS 598, at *28 (II) (B) (Ga. Ct. App. Oct. 28, 2016). Thus, the
court must assess whether a child currently in foster care is likely to suffer serious
harm as a result of continued dependency if the child remains indefinitely in foster
care, and “also the likelihood of harm if the child returns to the custody of his parent,
notwithstanding that the deprivation persists.” In the Interest of C. L., 315 Ga. App.
607, 611-12 (1) (b) (727 SE2d 163) (2012). The State must show that both scenarios
would likely cause serious harm in order for a termination of parental rights to be
13
justified. See E. M. D., 2016 WL 6395633, at *8, 2016 Ga. App. LEXIS 598, at *28-
*29.
Moreover, “an order terminating parental rights must contain explicit findings
supporting the conclusion that the continued deprivation will cause or is likely to
cause serious physical, mental, emotional, or moral harm to the child.” D. M., 2016
WL 6134092, at *7, 2016 Ga. App. LEXIS 576 at *20 (2) (a) (footnote and
punctuation omitted). “Indeed, the propriety of a termination order is inextricably
intertwined with one of this republic’s oldest and most sacred fundamental liberties
— the right to maintain familial relations and integrity. To this end, a mere recitation
that this legal requirement was met will not suffice.” Id. (footnotes and punctuation
omitted). Instead, the juvenile court must “ascertain the facts and state not only the
end result of that inquiry but the process by which it was reached.” Id. at 2016 WL
6134092, at *7, 2016 Ga. App. LEXIS 576 at *20-*21 (2) (a) (footnote and
punctuation omitted).
In its order, the juvenile court found that the children would suffer harm if they
remained in foster care because they would “experience doubt, uncertainty and
hesitancy in life[.]” The juvenile court further stated that foster care would not
provide the kind of stability the children needed, and would put them at risk of
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delinquency, other anti-social behavior, and “foster care drift.” And at the hearing,
the expert testified the children would be especially susceptible to these risks due to
their young ages. But this testimony did not rise substantially above general
assertions that long-term foster care is harmful. And there was no evidence that the
children’s continued relationship with their mother was harmful. Such testimony is
insufficient to show how each individual child will be harmed by the status quo to the
degree necessary to justify termination of the mother’s parental rights. See E. M. D.,
2016 WL 6395633, at *10, 2016 Ga. App. LEXIS 598, at *35-*38 (generalized
finding “that the children would experience harm absent the stability and permanency
of an adoptive home” not a sufficient finding of harm); D. M., 2016 WL 6134092, at
*7 (2) (a), 2016 Ga. App. LEXIS 576 at *21 (“generalized concerns of doubt,
uncertainty, hesitancy in life, and the need for stability and permanence” insufficient;
“each child . . . deserves and requires a full, separate, and thoughtful review by the
juvenile court of the issues relating to the child”). Compare In re S. P., 336 Ga. App.
488, 499-500 (2) (c) (784 SE2d 846) (2016) (adequate showing of harm where
mother’s recurring psychological and repeated incarcerations prevented development
of parental bond, the provision of stability for the child, and caused child distress
15
during visitation).5 Accordingly, even though we are extremely troubled by the
mother’s history of drug use and question whether she will ever be able to regain
custody of her children, we are nevertheless required to reverse the juvenile court’s
judgment.6
Judgment reversed. McFadden, P. J., and Branch, J., concur.
5
Although we do not consider whether a child would be better off with a foster
family when deciding to sever the natural parent-child relationship, see In the Interest
of S. O. L., 332 Ga. App. 738, 746 (3) (774 SE2d 785) (2015), we also note that the
testimony in the record was that no adoptive home had been identified for the
children.
6
Because of our holding here, we need not reach the mother’s argument that
the juvenile court erred in allowing a DFCS supervisor to testify as an expert,
although the mother did not object to this effect at trial and therefore likely waived
this argument in any event. See Fulbright v. State, 194 Ga. App. 827, 828 (3) (392
SE2d 298) (1990) (“This Court will review and correct only such error as was made
in the trial court and only on the specific basis on which it was presented to the trial
court.”).
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